On December 16, the District Court in the District of Columbia issued an opinion finding that the National Security Agency (NSA) program that has gotten significant attention due to the revelations of Edward Snowden was likely unconstitutional. In Klayman v. Obama, 1:13–cv–00851–RJL (D.D.C. 2013), five plaintiffs, who are subscribers or users of certain telecommunications and Internet companies, sued a variety of government officials as well as private companies and sought preliminary injunctive relief based upon the assertion that the NSA program was unconstitutional and violated other statutes. The District Court, in the context of assessing the propriety of injunctive relief, examined the request for relief, as well as which of the plaintiffs were relevant to the request relief, and narrowed the focus of the matter to the governmental defendants' "bulk collection and querying of phone record metadata."
In summary, the District Court found that it lacked jurisdiction to hear plaintiffs' Administrative Procedure Act (APA) claim that the government exceeded its authority under FISA. However, the District Court concluded it did have jurisdiction to assess the constitutional and statutory claims against the NSA and its use of the orders issued by the FISA Court for metadata collection. The court also concluded that the plaintiffs had standing, in contrast to prior rulings by the Supreme Court, that the plaintiffs demonstrated a substantial likelihood of success on the merits of their Fourth Amendment claim and that the plaintiffs would suffer irreparable harm in the absence of an injunction.
In what ended up making big news, the court concluded there was a substantial likelihood the plaintiffs would prevail on their Fourth Amendment claims, and as a result the court issued an injunction, because it also believed that plaintiffs would suffer irreparable injury if the injunction was not issued.
The order bars the government from collecting information about the two plaintiffs that were addressed by the injunction, and requires the government to destroy any metadata in its possession regarding these plaintiffs that was collected through the program. Recognizing the import of its decision, the court stayed the injunction pending the inevitable appeal.
Let’s unpack how the court came to this decision.
After summarizing the well-publicized allegations against the NSA, the history of the Church Commission, the reasons for the enactment of FISA and the changes that resulted from the PATRIOT Act, the court then reviewed the program at issue—specifically the collection of “business records” and metadata from telecommunications providers. For purposes of assessing the propriety of injunctive relief, the court accepted the government's characterization of the program.
According to the government, it created a counterterrorism program, consistent with FISA, that collects information about what phone numbers were used to make and receive calls, when the calls took place and how long the calls lasted. The government asserted that the program did not collect any content, names, addresses or financial information of any parties to calls. The stated goal of this program was to find connections between previously unknown terrorist operatives in the United States and terrorist organizations. The program, which has been going on for more than seven years, was started under the auspices of a blanket order from the FISA Court pursuant to Section 1861. This information was provided by private companies on a daily basis to the government, and the NSA consolidated the metadata into one database. This database permits the NSA to have a repository that it can retrospectively review, but the government asserted that the review is limited to counterterrorism purposes pursuant to the FISA order.
In what was a key issue for the court, it noted that no prior approval of a judicial officer was needed to conduct specific queries or reviews of this database, though the NSA had a system in place that required the approval of one of 22 selected reviewers upon a finding that there was a “reasonable, articulable suspicion” that the identifier (the telephone number) to be queried was associated with a specified foreign terrorist organization approved for targeting under the blanket FISA Court order the government had previously obtained.
The court also noted that there had been some issues with the program, including one significant enough to cause Judge Walton to require the government to require case-by-case approval for the program during a six-month period in 2009. There were further issues noted with the program, including concerns over the veracity of representations by the government as to the scope of the program, including the collection of Internet data.
The court then considered the plaintiffs' APA claim, finding that Congress had sufficiently clear intent to exclude subscribers from challenging the actions of the FISA Court. This finding doomed the APA claim, and the court then turned its attention to the Fourth Amendment claims.
The court first examined whether the plaintiffs had standing to challenge the NSA program. Noting the finding by the Supreme Court in Clapper v. Int'l USA, 133 S. Ct. 1138, 1147 (2013), that the plaintiffs in that case did not have standing to challenge the government’s collection of metadata, the court reached a different conclusion. Acknowledging that Clapper was decided months before the Snowden disclosures, the court here found that, unlike the Clapper plaintiffs, it was not "speculative" that the plaintiffs in this case had their information gathered as part of the NSA program, and in fact given the Snowden disclosures could point to "strong evidence" that their metadata had been, and will continue to be, collected.
One issue of particular note on standing was the fact that the government’s evidence, in the court’s view, demonstrated that whenever a query was run on the NSA database all phone numbers in the database would have been queried, whether the phone number was the target or not. Though this review was automated in many cases, this caused the District Court no less concern than if a human was doing a review.
Framing the Fourth Amendment issue as "… whether plaintiffs have a reasonable expectation of privacy that is violated when the government indiscriminately collects their telephony metadata along with the metadata of hundreds of millions of other citizens, without any particularized suspicion of wrongdoing, retains all of that metadata for five years, and then queries, analyzes, and investigates that data without prior judicial approval of the investigative targets" the court, not surprisingly, concluded that the program violated the Fourth Amendment. Specifically, the court found that the activity in question was a search within the Fourth Amendment, distinguishing Smith v. Maryland, 442 U.S. 735 (1979), a case relied upon by the FISA Court, which addressed the collection of metadata in a more limited circumstance—the installation of a pen register on a single telephone.
The court then examined whether the warrantless search in question here was reasonable, noting that there is a general view that warrantless searches are per se unreasonable under the Fourth Amendment. In order to determine if the program was permissible, the court examined the "nature and immediacy of the government's concerns in the efficacy of the [search] in meeting them." The concern for the court here seemed to focus on the fact that the government’s evidence on why a new national security letter could not be issued for each discrete situation was insufficient to establish that the search was permissible. The court here stated that the government had not shown a single instance in which the NSA's bulk metadata collection stopped an imminent attack.
Given this perceived lack of evidence, the court issued the injunction.
This decision must be understood in the broader context of other decisions by courts that have reached different conclusions on these, or related, issues, which this court noted. This includes United States v. Moalin, 2013 WL 6079518, at * 5-8 (S.D. Cal. Nov. 18, 2013); United States v. Graham, 846 F. Supp. 2d 384, 390-405 (D.Md. 2012), United States v. Gordon, 2012 WL 8499876, at *1-2 (D.D.C. Feb. 6, 2012), as well as other cases. There is no question that this litigation will continue and the issues are far from resolved.